11. April 2022
First published in the International Employment Lawyer.
Another year sees yet more changes to the UK's "new" points-based system which was only introduced in December 2020. Is this simply a Home Office re-branding exercise or are the changes more substantial?
In a further shake-up of the UK's right to work rules, from 6 April 2022 companies will need to carry out online right to work check on new hires or employees who apply for a visa extension where those employees hold a biometric residence permit (BRP) card, biometric residence card or frontier worker permit. From 6 April manual (physical inspection of documents in-person or by video under the COVID concession in place until 30 September 2022) provides no defence to illegal working or a company’s compliance with its sponsor duties. Manual checks for everyone else (including British nationals) will continue. If you haven't done so already, do review and update your onboarding policies accordingly.
This appears to be a rebranding exercise. The new GBM visa, enabling transfers of group employees into the UK to a UK trading company holding a sponsor licence still, in most respects remains the same (e.g., no English language requirement, no settlement, no advertising and minimum skills at graduate level). The main change is a raise in mandatory base salary for transfers from £41,500 to £42,400. This salary can continue to include some allowances. If you are a user of the ICT route, you should review the salary change alongside your existing salary banding and consider whether you need to alter salaries more broadly.
The Home Office has introduced some new visa routes you should be aware of:
After two years of pandemic delays and impact on visa processing, the Home Office continues to digitalise its service. For example, European nationals now have the chance to apply for their visas using the IDV App rather than at an in-person appointment. This has understandably proved popular given the restrictions on travel we have seen across Europe.
From an employer's perspective the IDV App does lead to two important changes. Firstly, it does not issue a BRP card – right to work (or rent) is checked through a Home Office portal. Secondly, the applicant is not automatically issued with a national insurance number. This means that your payroll team will need to arrange this when onboarding.
We expect the Home Office to continue to expand the use of the App to other routes over the next 12 months.
A further trend is the increased use of clawback clauses for visa costs through which employers try and discourage sponsored employees from moving sponsors. These must be carefully drafted, for example, excluding company only costs such as the skills charge and COS fee, and with an eye to reducing the payback obligation over time so that they are not considered to be a penalty clause (which is unenforceable). With Home Office fees alone adding up to £20,000 or so for a five year visa for a family of four, this is a trend we are sure will continue.
Vikki Wiberg is a Senior Counsel in Taylor Wessing's Employment, Pensions and Mobility Team.
Update from 16 March 2022
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